Arizona Libertarian Party v. Hobbs

          Argued and Submitted March 12, 2019 San Francisco, California

          Appeal from the United States District Court for the District of Arizona D.C. No. 2:16-cv-01019-DGC David G. Campbell, District Judge, Presiding.

          Oliver B. Hall (argued), Center for Competitive Democracy, Washington, D.C., for Plaintiffs-Appellants.

          Kara M. Karlson (argued) and Joseph E. La Rue, Assistant Attorneys General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendant-Appellee.

          Before: J. Clifford Wallace, A. Wallace Tashima, and M. Margaret McKeown, Circuit Judges.

         SUMMARY^[*]

         Civil Rights / Elections

         The panel affirmed the district court's summary judgment in favor of Arizona's Secretary of State in an action brought by the Arizona Libertarian Party challenging, under the First and Fourteenth Amendments, a state law requiring up to 1% of voters eligible to participate in Arizona's primary to sign a nominating petition for a Libertarian candidate to earn a place on the primary ballot.

         Applying the balancing framework set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992), the panel first held that the State's signature requirement imposed a minimal burden on the Libertarian Party's right to access the primary ballot. Accordingly, the panel determined that a less exacting scrutiny was appropriate. The panel concluded that Arizona's signature requirements reasonably furthered Arizona's regulatory interest in preventing voter confusion, ballot overcrowding, and frivolous candidacies and justified the modest burden on the Libertarian Party's right to ballot access.

         The panel rejected the Libertarian Party's contention that the Arizona law infringed upon its right to free association by effectively requiring its candidates to solicit signatures from non-members. The panel held that any burden on the Libertarian Party's associational freedom was modest, and again applying less exacting scrutiny, the panel credited Arizona's important interests to justify the reasonable requirements.

         The panel further rejected the Libertarian Party's contention that Arizona's signature requirement violated equal protection, noting that the Libertarian, Democratic, and Republican Parties were all subject to the same statutory requirements. The panel observed no equal protection issue in Arizona's treatment of the Green Party, a new party that was subject to different statutory requirements.

          OPINION

          McKEOWN, Circuit Judge.

         Once again, we have before us a challenge to Arizona's requirements to earn a place on the ballot. See, e.g., Ariz. Green Party v. Reagan, 838 F.3d 983 (9th Cir. 2016); Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008). The Arizona Libertarian Party challenges under the First and Fourteenth Amendments a state law requiring up to 1% of voters eligible to participate in its primary to sign a nominating petition for a Libertarian candidate to earn a place on the primary ballot. The district court granted summary judgment to the Arizona Secretary of State (the "Secretary"), and we affirm.

         BACKGROUND

         Under Arizona law, there are two types of political parties: "established" parties and "new" parties. A party is "established" in a jurisdiction if it (i) obtained at least 5% of the total votes cast in the prior general election, or (ii) maintains membership exceeding 0.66% of registered voters in that jurisdiction. Ariz. Rev. Stat. § 16-804 (applying to state, county, city, and town elections). An established party is entitled to "continued representation" on the general election ballot. Id. The Libertarian, Democratic, and Republican Parties are established statewide.^[1]

         Before 2016, to qualify for the primary ballot, an established party candidate needed to submit signatures^[2]exceeding a certain percentage (ranging between 0.5% and 2%, depending on the office sought) of the party's registered voters in the jurisdiction where he sought election. Ariz. Rev. Stat. § 16-322(A) (2015). A candidate was permitted to submit signatures from party members, members of any new party, or unaffiliated registered voters.^[3] Id. § 16-321(D).

         In 2015, the Arizona legislature amended the signature requirements for established party candidates. 2015 Ariz. Sess. Laws Ch. 293, §§ 2-3 (H.B. 2608). Now, to qualify for a primary ballot, an established party candidate must submit signatures exceeding a certain percentage of "qualified signer[s]," which include the party's registered voters, as well as all new party voters and unaffiliated registered voters. Ariz. Rev. Stat. § 16-321(F). The amendments reduced the signature threshold for each office to between 0.25% and 1%. Id. § 16-322(A). In 2016-the first election governed by the amended rules-there were significantly fewer Libertarian candidates on the primary and general election ballots than in prior elections. See generally Ariz. Sec. of State, Historical Election Results & Information, https://azsos.gov/elections/ voter-registration-historical-election-data/historical-election-results-information (last visited May 7, 2019) (collecting data for recent Arizona elections).

         A "new" party is subject to different rules. A new party must first submit a petition for recognition and signatures from eligible voters exceeding 1.33% of total votes cast statewide in the prior gubernatorial election. Ariz. Rev. Stat. §§ 16-801(A), 16-803. After doing so, the party's candidates are eligible to pursue placement on the primary and general election ballots for the next four years. Ariz. Rev. Stat. § 16-801(B). To retain its recognition and ballot eligibility at the end of the four years, the party must either qualify as an established party or file another petition for recognition and the accompanying signatures. Id.; see Ariz. Rev. Stat. §§ 16-803-04.

         To qualify for the primary ballot, a new party candidate must submit signatures exceeding 0.1% "of the total vote for the winning candidate or candidates for governor or presidential electors at the last general election within the district." Ariz. Rev. Stat. § 16-322(C). The Arizona Green Party first qualified as a new party in 1990, and, never having qualified as an established party, has successfully re-filed petitions for new party recognition and the accompanying signatures several times, most recently in 2014.^[4] Since the beginning of 2017, Arizona has permitted digital solicitation and streamlined submission of voter signatures through an online portal. Ariz. Rev. Stat. §§ 16-316-18.

         Under Arizona law, an established party member may not vote in another party's primary, but it is up to the established parties to decide whether new party members or unaffiliated voters can participate in their primaries. See Ariz. Rev. Stat. § 16-467.^[5] The Libertarian Party excludes such voters, while the Democratic and Republican Parties do not.

         In April 2016, the Libertarian Party and its chairman Michael Kielsky (collectively, the "Libertarian Party") filed this action challenging the primary signature requirements. The district court denied the Libertarian Party's request for a preliminary injunction prohibiting enforcement of the amended requirements for the 2016 election. The parties filed cross-motions for ...